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Gonzalez v. State

Court of Appeals of Texas, Fourth District, San Antonio
Mar 23, 2005
No. 04-04-00250-CR (Tex. App. Mar. 23, 2005)

Opinion

No. 04-04-00250-CR

Delivered and Filed: March 23, 2005. DO NOT PUBLISH.

Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-2550A. Honorable James Barlow, Judge Presiding. Affirmed.

The Honorable Mary Roman is the permanent judge of the 175th District Court, but Judge Barlow presided over the trial and signed the judgment.

Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.


MEMORANDUM OPINION


A jury found defendant Carlos Gonzalez guilty of the offense of aggravated robbery. Defendant pled true to the enhancement paragraph and the trial court assessed punishment at forty years' confinement. On appeal, defendant asserts: 1) the trial court abused its discretion in denying his requests for a mistrial and 2) the evidence is factually insufficient to support his conviction. We affirm.

MOTION FOR MISTRIAL

In his first issue, defendant complains the trial court committed reversible error in denying his motion for mistrial after he objected to the complainant's testimony. In his response to a question by defense counsel, complainant testified that his employee, Charles Welch, told him someone came by looking for complainant at his used car lot. Complainant further testified that after a detective with a photo lineup was summoned, Welch pointed to the photo and stated "that's the guy that was here. Came back over here probably to shoot you, you know." Defense counsel objected on hearsay grounds and the objection was sustained by the trial court. However, counsel did not request an instruction to disregard. Instead, he requested a mistrial, which was denied. In order to preserve an error for appeal, a defendant should: 1) make a timely objection; 2) request an instruction to disregard; and 3) move for a mistrial if an instruction to disregard is not sufficient to cure the error. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004); Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App. 1982). Although defendant failed to request an instruction to disregard, the Court of Criminal Appeals has recently held that a timely motion for mistrial is sufficient to preserve error if the error is uncurable. Young, 137 S.W.3d at 69 (stating that the sequence of objecting, requesting an instruction to disregard, and moving for a mistrial is not essential to preserve complaints for appellate review, "the essential requirement is a timely, specific request that the court refuses"). If the alleged error is curable, however, "the party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been `cured' by such an instruction." Id. at 70. Accordingly, because defendant did not request an instruction to disregard, our review is limited to the question of whether the complained of testimony could have been cured by such an instruction. Id. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Generally, any error in admitting improper hearsay testimony in a criminal case may be cured and rendered harmless by the trial court's instruction to disregard, unless the hearsay testimony is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression on their minds. Ali v. State, 742 S.W.2d 749, 758 (Tex.App.-Dallas, 1987, pet ref'd.). Here, the challenged testimony was given in response to a question from defense counsel. The State did not pursue or attempt to elaborate on this testimony later in the trial after the defense's objection was sustained. Further, nothing in the record indicates the testimony was elicited to inflame the minds of the jury or that it was so damning as to become impossible to remove the harmful impression from the jury. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992). We conclude that an instruction to disregard would have cured any error. See Estrada v. State, 945 S.W.2d 271, 274 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (hearsay testimony is of a character that usually can be cured by an instruction to disregard). Because the alleged error could have been cured, defendant was required to request an instruction to disregard in order to preserve his complaint for our review. Defendant did not request such an instruction; therefore, he has waived any error in the trial court's denial of his motion for a mistrial. Defendant further asserts the trial court erred in denying his second motion for mistrial after the trial court sustained his two objections to Detective Lockamy's testimony that he had developed defendant as a suspect in this case, due to defendant's alleged involvement in a later robbery of a nearby convenience store. In his testimony, Lockamy was asked how he determined who the suspects were in this case. Lockamy responded, "I developed the suspect basically because the Wah Lee store was robbed." Defense counsel objected, arguing the State was not allowed to present evidence of other crimes. The trial court sustained his objection. Defendant did not request an instruction to disregard or request a mistrial. Therefore, defendant has waived this complaint on appeal. Young, 137 S.W.3d at 69. In the second comment complained of, Lockamy discussed how he first presented a photo lineup to the complainant. Lockamy was asked if he had told the complainant that a suspect was included in the lineup. Lockamy answered, "No. In fact, he had told me about the robbery that had occurred on Mission Road." Lockamy attempted to elaborate, but was silenced by counsel's objection. Instead of requesting an instruction to disregard, counsel requested a mistrial, which was denied by the trial court. A witness's inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998); Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App. 1992). Here, the second reference to an extraneous offense was inadvertent and did not provide any facts establishing a connection between defendant and the second robbery. We hold the reference did not suggest the impossibility of erasing any erroneous impression from the jurors' minds, and therefore would be curable by a trial court's instruction to disregard. Accordingly, defendant was required to request an instruction to disregard in order to preserve his complaint for our review. Defendant did not request such an instruction; therefore, he has waived any error in the trial court's denial of his motion for a mistrial.

FACTUAL SUFFICIENCY OF THE EVIDENCE

In his third issue, defendant asserts the evidence is factually insufficient to support a conviction for aggravated robbery. We review the factual sufficiency of the evidence under the appropriate standard of review. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Defendant argues the State's case stands solely upon the eye-witness testimony of the complainant. According to defendant, there was no evidence other than this testimony to support a guilty verdict. Instead, defendant asserts the testimony of his work supervisor, Gilbert Hernandez, supports his argument that he did not commit the offense. Hernandez testified that defendant was working the day of the robbery from 8 a.m. until 4 p.m. Defendant worked with Hernandez until noon, and then Hernandez sent defendant to another work-site. According to Hernandez, after working at the other work-site, defendant returned after 4 p.m. to receive his paycheck. A payroll check stub presented to defendant by Hernandez was admitted into evidence. Defendant asserts this evidence shows defendant was working on the date of the crime and, contrary to the findings of the jury, he could not have committed the offense. Therefore, the reasonable doubt standard could not be met, thus requiring reversal of his conviction. The State argues, that the complainant's testimony was supported by the crime scene technician and Detective Lockamy. The technician testified to the location of blood splatters and bullet holes in the complainant's office, which supported the complainant's narration of what happened during the robbery. Lockamy stated the complainant identified the defendant's photo in the lineup as the assailant within seconds of being shown the lineup. The State further argues that because defendant was not working with Hernandez the entire day, Hernandez had no way of knowing where defendant was all day or whether he actually was at the other work-site. Instead, Hernandez testified he only believed defendant was at the other work-site based on his appearance at the end of the day. Hernandez also stated he had no way of knowing where the defendant had been and he had no personnel records to prove the defendant worked that day. The jury, as the trier of fact, resolves any conflicts in the evidence, evaluates the credibility of the witnesses, and determines the weight to be given any particular evidence. Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.-San Antonio 1994, pet. ref'd). The jury could choose whether to believe or disbelieve all or any portion of the complainant's or defense witness' testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986), cert. denied, 488 U.S. 872 (1988). Moreover, the jury had the exclusive responsibility of reconciling conflicts in the testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832 (1997). Viewing all of the evidence, we hold the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.


Summaries of

Gonzalez v. State

Court of Appeals of Texas, Fourth District, San Antonio
Mar 23, 2005
No. 04-04-00250-CR (Tex. App. Mar. 23, 2005)
Case details for

Gonzalez v. State

Case Details

Full title:CARLOS GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Mar 23, 2005

Citations

No. 04-04-00250-CR (Tex. App. Mar. 23, 2005)